~ Strathmore University Centre for Intellectual Property and Information Technology Law (CIPIT)

Media reports (here, here, here and here) indicate that the Kenya Broadcasting Corporation (KBC) has moved to the High Court under Certificate of Urgency seeking interim injunctive orders against Pay TV companies Wananchi Group, Pan African Network Group (PANG) and StarTimes Media. It is reported that Ogola J sitting in the High Court made the following ruling:

“Pending the hearing and determination of this suit, an injunction is issued restraining the respondents (Wananchi, PANG and StarTimes) from infringing by way of advertising, broadcasting or promoting the tournament the rights of KBC”

From the outset, it is important to state that the rights in question are FIFA Media Rights conferred exclusively to KBC for the territory of Kenya (See our previous analysis here).

In this regard, KBC alleges that its exclusive rights were infringed through hacking of its signals and broadcasting of the World Cup opening match along with the adverts paid for to be aired during the match. In this regard, KBC claimed that these companies used the popularity of the World Cup to attract advertisers and make sales of their decoders.
In the case of StarTimes, it is alleged that even after KBC blocked StarTimes from its digital platform, StarTimes used the analogue signal to re-broadcast live matches of KBC to its Kenyan viewers and those in Uganda and Tanzania.

In May 2014, this blogger first raised the issue here with respect to Pay TVs’ rights to broadcast the World Cup after coming across the following tweet from Wananchi:

However StarTimes and PANG appear to have taken their World Cup advertising to the extreme by falsely creating the impression that they held exclusive rights to broadcast the games. The Consumer Federation of Kenya (COFEK), a powerful consumer protection lobby group, slammed StarTimes’ adverts stating that:

“StarTimes are openly lying to the public that they will air live world cup matches from today until the end of the tournament.
In a full page colour advertisement in sections of the print media today, “Score with the best deal in town” StarTimes are saying “watch live football in crystal clear digital quality on StarTimes”. The rights for Kenya are limited to the national broadcaster Kenya Broadcasting Corporation (KBC) and the South-African run DSTV.”

Consider the following StarTimes advert:

As a result of this deceptive advertising, COFEK claimed that customers were led to buy StarTimes set top boxes which were conveniently retailing at a reduced cost of Sh1,999. The consumer rights body went further to expose an alleged plot by StarTimes to infringe on KBC’s exclusive media rights. In this regard, COFEK states that:

“According to credible sources we cannot name for their own safety, StarTimes are hoping to illegally cash on its’ Signet KBC1 channel to relay the World Cup to its’ Kenya, Tanzania and Uganda viewers digitally and through YouTube. Uganda has no FIFA rights to relay the same.”

COFEK also explains that KBC was under enormous pressure “from above” (presumably AUB and/or FIFA) to deal with these infringement plots and that reportedly, KBC had threatened to disconnect its channel from the StarTimes bouquet if they infringed KBC’s rights.

Meanwhile, across the lake in Uganda, StarTimes appeared to have taken its antic to a whole new level when it released the following advert:

Media reports from Uganda indicated that the Uganda Consumer Protection Awareness Association (UCPAA) has expressed “shock” and “deep concern” over what it described as “false and highly misleading advertising” by StarTimes who appeared to be taking advantage of the World Cup to dupe Ugandans into buying their products by advertising World Cup matches they have no rights to show.

FIFA was reportedly contacted over this matter and is quoted as stating that:

“World cup rights are negotiated globally and sold as such no one can show or advertise the matches except the global partner or its authorized affiliates. As far as FIFA is aware Star times has not been given the rights to show the matches which is why FIFA and the Tanzanian Government banned them from advertising promotional offers of this nature (…) Unfortunately the World cup has such a global following that many companies jump onto the band wagon despite not being an official sponsor and engage in what is commonly known as ambush marketing. This is a phenomenon which FIFA has been trying to stamp out because it infringes on our partners rights and is quite frankly is a criminal offence. We urge the Police, Ministry of Information and broadcasting and the UCC to investigate companies engaging in such illegal practices because we don’t want Ugandans to be conned into buying what they will not receive”

Meanwhile, back home in Kenya, new information has emerged that KBC received Kshs 15 Million from StarTimes in connection with the live airing of World Cup matches. According to KBC, the money paid by StarTimes sponsorship is for advertisements not on rights to broadcast live matches from its feed. In this regard, KBC asserts that DSTv through its Kenyan subsidiary GoTV paid Kshs 50 Million as “title sponsorship fees” to KBC.

All in all KBC’s suit against StarTimes for infringement of exclusive FIFA media rights will be worth watching as it relates closely to the digital migration case currently before the Supreme Court. In the meantime, COFEK reports that the national broadcasters in Rwanda and Zambia also intend to take legal action against StarTimes for the breach of their exclusive broadcast rights.